Kiema & another v Kiema & another
The bottom line
#Kenya's Court of Appeal refused to block an estate distribution because the applicants showed no harm that money couldn't fix, even though their appeal was arguable.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended appeal is arguable
- 2.Whether, absent stay, the intended appeal would be rendered nugatory if it succeeds
Key legal issues
#Arguability of the intended appeal
The intended appeal was arguable on the grounds of lack of notice of the confirmation of grant hearing and uneconomically viable parcels.
The applicants, though administrators, claimed they were not notified of the confirmation process, and that the approved distribution would render two parcels uneconomically viable. The court found these were not idle arguments but genuine issues worthy of juridical investigation, satisfying the first limb of the Rule 5(2)(b) test.
Whether the appeal would be rendered nugatory absent stay
The appeal would not be rendered nugatory; the second limb failed and the application was dismissed.
There was no immediate threat of eviction since both parties reside on the same parcel, and the court was not told there was no other means of compensating the applicants from the estate if prejudiced by the mode of distribution. Both limbs must be satisfied; failing the second, the application could not succeed.
Legal principles established
#- To succeed under rule 5(2)(b) an applicant must satisfy both twin principles: an arguable appeal and that the appeal will be rendered nugatory absent stay; failure of either limb is fatal.
- A single arguable point suffices; the applicant need not establish a multiplicity of arguable points nor show the ground will succeed.
- An appeal is arguable where it contains grounds that can genuinely be asserted, on which there are divergent legal or factual positions of some merit worthy of juridical investigation.
- Whether an appeal will be rendered nugatory depends on whether what is sought to be stayed is reversible, or if not reversible, whether damages will reasonably compensate the aggrieved party.
Court orders
#- 1.The Notice of Motion dated 17th May 2024 is dismissed
- 2.No orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court at Kitui
- HC Succ. No. 214 of 2015
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (application for injunction and stay of execution pending appeal)
Relief refused
#Injunction restraining respondents from administering and effecting distribution of the estate pending inter-partes hearing
Application failed the twin Rule 5(2)(b) tests; the nugatory limb was not satisfied
Injunction restraining respondents from administering and effecting distribution of the estate pending the intended appeal
Applicants failed to satisfy the second limb on the nugatory aspect
Stay of execution of the Ruling and Orders of Hon Justice R.K Limo delivered on 7th May 2024
No immediate threat of eviction; applicants could be compensated from the estate if prejudiced
Costs
No orders as to costs since the respondents filed neither response to the application nor submissions and did not attend Court for the hearing
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
To succeed in an application made under rule 5(2)(b) of this Court’s Rules, an applicant must satisfy the twin principles namely: that he has an arguable appeal; and secondly, that absent stay, the intended appeal or appeal if successful, will be rendered nugatory
The applicants are required to satisfy both the limbs and having failed to satisfy the second limb on the nugatory aspect, the requirement under Rule 5(2)(b) of this Court’s Rules has not been met.
Accordingly, the Notice of Motion dated 17th May, 2024 is found to lack merit and is hereby dismissed. There will be no orders as to costs since the respondents filed neither response to the application nor submissions and they also did not attend Court for the hearing.
Issues in the judgment
#Judge order inconsistency between coram and signature block
Judgment alternately describes parties as applicants and appellants
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kiema & another v Kiema & another", Case Analysis (2024). Civil Application E242 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1952/eng@2024-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.